UK: Ofcom changes procedures for fairness & privacy complaints

Ofcom, the communications industry regulator recently published new guidelines setting out the way it will handle fairness and privacy complaints. The key changes are:

• Access to rushes made easier.

• The time limits for making a complaint to Ofcom have been changed.

• The introduction of a two-stage decision-making process for more complex cases.

• Ofcom will now drop complaints that are resolved informally.

Following a consultation at the end of last year, Ofcom recently published new guidelines setting out the way it will handle fairness and privacy complaints from 1 June 2006. Ofcom’s procedures include:

• how to make a complaint to Ofcom;

• how Ofcom decides whether or not to proceed with a complaint;

• exchanges of statements between the complainant and broadcaster;

• how Ofcom will adjudicate on complaints (including how Ofcom decides whether it is appropriate to hold a hearing); and

• appealing a decision made by Ofcom.

There are four key changes:

Material submitted to Ofcom

For the first time, Ofcom’s new procedures clearly state that both the complainant and the broadcaster will see all the relevant material supplied to Ofcom by the other party. Ofcom frequently asks for and obtains from broadcasters rushes and/or transcripts of unedited interviews. Complainants are entitled to see these and should routinely request that they be provided with copies, because rushes and transcripts of unedited interviews can be extremely valuable; they are of particular assistance where a complainant alleges that an interview has been unfairly edited. However, in any event, it is always advisable to make your own recordings of any interview to ensure that you have a complete and accurate record.

Time for making a complaint to Ofcom

Complaints must now be made to Ofcom within 80, 50 or 32 calendar days after the broadcast of, respectively, terrestrial television, satellite and cable, or radio programmes. These time periods are derived from the time periods for which broadcasters are required by law to retain recordings of their output (90, 60 and 42 calendar days), and these were previously the "longstop" dates for making complaints to Ofcom. Ofcom states that the reduction has been made to "guarantee that relevant recordings are available".

More importantly, the time period for making a complaint to Ofcom will now be extended if a complainant decides, in the first instance, to pursue its complaint directly with the broadcaster. In these circumstances, the broadcaster is on notice that it should retain its recordings of the programme(s) and any related material, such as rushes of interviews. The time periods for making a complaint to Ofcom in these circumstances remain at 90, 60 or 42 calendar days, with time starting to run from "the date on which the broadcaster may reasonably expect the complainant to have received its final communication" in relation to the complaint. This change brings Ofcom’s procedures in line with those of the Press Complaints Commission, which normally only deals with complaints received within two months after publication but will also deal with complaints that are taken up directly with newspapers or magazines promptly after publication, provided that the complaint is received by the PCC within two months after the end of effective correspondence with the newspaper or magazine.

Two-stage decision-making process for more complex complaints

Under Ofcom’s old procedures, there was a limited right to appeal decisions made on less complex cases by Ofcom’s Executive to Ofcom’s Fairness Committee. However, there was no such right of appeal from decisions made by the Fairness Committee on more complex cases. A complainant’s only option in such cases was to consider whether it would be possible to petition for a judicial review of Ofcom’s decision (judicial review is only available in limited circumstances).

Ofcom’s Fairness Committee is its most senior decision-making body in terms of making fairness and privacy adjudications and, as such, Ofcom considered that it would not be consistent with its constitution to create a new decision-making body to review the Fairness Committee’s decisions. However, it has revised its procedures to incorporate a two-stage process for Fairness Committee decisions, involving a provisional decision and, if necessary, a re-consideration following final representations from the parties. If either party makes material representations (as defined in the Procedures), which may change part or all of a decision, then the Fairness Committee will re-consider the relevant part of its provisional decision. This two-stage process only applies where a case goes directly to the Fairness Committee in the first instance; it does not apply where the Fairness Committee is re-considering a decision made by the Executive. The introduction of this two-stage process means that Ofcom’s already lengthy decision-making process will be lengthened even further. Complainants in complex cases will now have to wait even longer for Ofcom to adjudicate on their complaints.

Informal resolution of complaints

Ofcom’s guidelines now clearly set out that complaints that have been submitted to Ofcom may be resolved informally, if the broadcaster provides a proposal for appropriate resolution of the complaint that the complainant then accepts. Ofcom will not then proceed to consider the complaint. However, if the complainant does not accept the broadcaster’s proposal, Ofcom will proceed to consider and adjudicate on the complaint. It is to be hoped that this will encourage broadcasters to put forward sensible proposals for resolution of complaints in cases where they have clearly breached Ofcom’s Code. Ofcom will normally publish brief details of resolved complaints on its website.

Click here to view the new procedures, which will be effective from 1 June 2006. To view a copy of our response to Ofcom’s consultation on the procedures (together with those of various broadcasters) click here.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

The original publication date for this article was 19/05/2006.